Ms Orla Keane:

I am also involved with the mental health tribunals and the intermediate category of person has been inserted into the section relating to the involuntary detention of people. If you look at the general scheme, it provides that people can be detained on the basis of capacity but they do not have to meet the criteria set out in section 8. In effect it is creating a new category under which a person can be detained. Somebody is being detained on capacity grounds, not on the mental disorder requirement or the need to be detained for care and treatment which cannot be provided elsewhere and which will ameliorate their condition. Why would someone just be detained on the grounds of capacity? That seems to fly in the face of the Mental Health Act 2001 and it also seems to impinge on and potentially cause difficulties with the Assisted Decision-Making (Capacity) Act 2015, which deals with capacity.

When we originally received the heads of Bill in 2019, the intermediate category was not even in the Bill. It was inserted later and we understand that was done because somebody was seeking to address some of the recommendations in the expert review group's report. As Mr. Farrelly has said, that had been addressed by the 2015 Act. Our basic concern is that the Bill is allowing somebody to be detained because of a capacity issue and not because of the basic criteria for detention, mental disorder or mental illness. That is a concern for us because capacity is being dealt with under a separate Bill. Sections 8 and 14 on the definitions of mental disorder and treatment, and Part 4; sections 56, 57, 60 and 66, all need to be read in conjunction with one another to understand how all the sections work. It is difficult to look at any particular section in isolation because they are all so interlinked with each other. I hope that assists.